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Global regulatory standards and secured transactions law reforms : at the crossroad between access to credit and financial stability
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Castellano, Giuliano G. and Dubovec, Marek (2018) Global regulatory standards and secured transactions law reforms : at the crossroad between access to credit and financial stability. Fordham International Law Journal, 41 (3). pp. 531-588. 1.
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Official URL: https://news.law.fordham.edu/filj/2018/04/20/globa...
Abstract
The main argument of this article is that dissonances between secured transactions law and capital requirements stem from their different ethoi and hinder both access to credit and financial stability worldwide. To sustain this argument and advance the debate in both fields of law, it is necessary, first, to isolate the rationales and the operational logics of secured transactions law and capital requirements. The narrative sustaining and justifying the law of secured transactions is rooted in the idea that security interests, especially those in personal property, are the core engine for economic growth as they redress the problem of “dead capital”, that is, the mismatch between the assets held by individuals or companies and the assets that financiers are willing to accept as collateral. Through this lens, international organizations have been actively engaged in promoting law reforms that establish legal regimes that facilitate the conversion of dead capital into productive capital. The underlying assumption is that by preferring secured creditors over unsecured creditors, the use of collateral is facilitated and more credit is extended at a lower cost. Hence, law reformers strive to design a legal regime in which creditors and debtors are able to negotiate the terms of their consensual transactions to fit their idiosyncratic financing needs and risk appetites, while mandatory rules are largely imposed having in view the effects of security rights on third par ties. As illustrated in this Article , such a rationale permeates national laws and the international legal standards adopted by the United Nations Commission on International Trade Law (UNCITRAL) and the European Bank for Reconstruction and Development (EBRD)
| Item Type: | Journal Article | ||||||
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| Subjects: | K Law [Moys] > KN Common Law, Private Law | ||||||
| Divisions: | Faculty of Social Sciences > School of Law | ||||||
| Library of Congress Subject Headings (LCSH): | Security (Law), Capital, Credit | ||||||
| Journal or Publication Title: | Fordham International Law Journal | ||||||
| Publisher: | Fordham University * School of Law | ||||||
| ISSN: | 0747-9395 | ||||||
| Official Date: | 20 April 2018 | ||||||
| Dates: |
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| Volume: | 41 | ||||||
| Number: | 3 | ||||||
| Page Range: | pp. 531-588 | ||||||
| Article Number: | 1 | ||||||
| Status: | Peer Reviewed | ||||||
| Publication Status: | Published | ||||||
| Access rights to Published version: | Open Access | ||||||
| Related URLs: |
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